Fertility treatment: abolish the 'welfare principle'

People seeking fertility treatment in the UK should have the freedom to decide to conceive.

  • Anyone seeking fertility treatment in the UK must first satisfy the ‘welfare principle’, as laid down in the 1990 Human Fertilisation and Embryology Act. Before they can be provided with treatment, the welfare of any child they might have must be taken into account.

  • The welfare principle is rarely subjected to legal or political scrutiny. But its application to fertility treatment is problematic, and it should be deleted from the legislation. There are three main problems with this pre-conception version of the welfare principle:

  • 1) It is unfair, because we do not expect fertile people to prove their parental adequacy prior to conception.

  • 2) It is disingenuous, because we do not give the clinicians who are responsible for making this welfare assessment enough information with which to make this complex judgement.

  • 3) It is incoherent, because in other contexts the law insists that existence must almost always be judged preferable to non-existence.

  • The welfare of children who do not yet exist is, in simple and crude terms, none of the law’s business.

Anyone seeking fertility treatment in the UK must first satisfy the ‘welfare principle’, as laid down in the 1990 Human Fertilisation and Embryology Act. Before they can be provided with treatment, the welfare of any child they might have must be taken into account. The result is that, unlike fertile couples, anyone who cannot conceive unaided must have their parenting ability laid open to scrutiny before they are allowed to try to have a baby.

The welfare principle, which is derived from family law, has been in the ascendancy in recent years - few people, now, are prepared to question its universal relevance (1). It seems to have become the received wisdom that children’s welfare must always be a central consideration when we make any decision that may affect their lives. Even if we admit that there will be uncertainties about precisely where a child’s best interests lie in any particular case, the importance of giving priority to children’s welfare is seldom disputed.

The incorporation of the welfare principle in the rules governing the provision of infertility treatment has gone largely unnoticed (2). In the parliamentary debates leading up to the passage of the Human Fertilisation and Embryology Act in 1990, the inclusion of a welfare principle was neither challenged nor defended. It was simply assumed to be self-evidently true that their future children’s welfare ought to be taken into account before a couple is offered assistance with conception, and this assumption undoubtedly persists today.

But I will argue that the principle is an unjust and irrational barrier for people who need assistance in order to have children , and that it should be removed from the statute.

The issue here is not the safety of a particular assisted conception technique. Of course, doctors have special expertise in evaluating a technique’s impact upon future children, and they are entitled to take this into account when making treatment decisions. If safety were the sole purpose of the pre-conception welfare principle, it would be as uncontentious as basing the decision not to prescribe a particular medicine to pregnant women upon evidence of its propensity to cause birth defects.

The principal purpose of the welfare principle is, instead, to ensure that prospective patients are judged fit people to bring a child into the world prior to acceptance on to an infertility clinic’s treatment programme (3). And it is this requirement that clinicians should routinely evaluate people’s parenting ability prior to conception that I believe to be incoherent, disingenuous and illegitimate.

For the vast majority of people, deciding whether or not to conceive is not susceptible to legal control. People who conceive through heterosexual sexual intercourse do so without any external scrutiny of the merit of their decision. Monitoring these very personal choices in order to identify ill-judged or improper conception decisions would be condemned as an unacceptably intrusive abuse of state power.

As Alexander Capron, director of ethics and health at the World Health Organisation (WHO), has observed: ‘whatever advice one might be justified in giving friends who are making a selfish, rash or otherwise irresponsible choice about reproduction, or whatever moral criticism one might properly mount of such conduct, the consequences of giving legal effect to a judgement of parental irresponsibility seem unacceptable both for the individuals involved and for society.’ (4)

There are two good reasons for not imposing a child welfare filter upon individuals’ conception decisions, even when the choice they have made may seem foolish or disturbing. First, interfering with a particular individual’s decision to conceive a child would usually involve violating their bodily integrity and sexual privacy. We do not sterilise people who have been convicted of violent offences against children because, however gruesome their crime, their person must remain inviolate. Second, the freedom to decide for oneself whether or not to reproduce is integral to a person’s sense of being the author of their own life plan.

We should refrain from scrutinising the pre-conception decisions of adults seeking fertility treatment just as we would if they had been able to conceive naturally. This is not the same as saying that people have a right to be provided with infertility treatment. Instead, the point is that we should each have the liberty to shield certain personal decisions from public scrutiny.

The decision to conceive a child goes to the heart of an individual’s identity and is precisely the sort of choice that we all ought to be able to make within the privacy of our most intimate relationship. It is unfair to take advantage of a couple’s biological incapacity in order to assess the wisdom of their decision to start a family. We may not be able to fund their treatment, or there might be no treatment that is clinically appropriate for them. But evaluating an infertile couple’s fitness to parent deprives them of the decisional privacy that the majority of people are rightly able to take for granted.

  • The welfare principle in UK law

In many countries, access to assisted conception services is confined to married or cohabiting heterosexual couples. The French Bioethics law of 1994 (5), for example, provides that reproductive technologies can only be used to remedy infertility ‘of a pathological character which has been medically diagnosed’, in heterosexual couples who must either be married or able to prove that they have lived together for at least two years. On the face of it, the British legislation appears far more liberal. The Human Fertilisation and Embryology Act 1990 contains no statutory bars upon the treatment of any competent adult - so single, lesbian or postmenopausal women may all lawfully receive assisted conception services in British clinics.

However, this does not mean that there is official endorsement of the assisted creation of unconventional families. At the time of the passage of the Human Fertilisation and Embryology Act, there was intense political concern about the social and economic problems believed to result from lone parenthood, and the then Conservative government had been pursuing a legislative agenda based upon the promotion of traditional family values. While the Act may not formally prohibit clinics from assisting single or lesbian women to conceive, it does contain an oblique presumption against their treatment through its version of the ‘welfare principle’.

Section 13(5) of the Human Fertilisation and Embryology Act 1990 provides that a woman shall not be provided with treatment services unless account has been taken of ‘the welfare of any child who may be born as a result of the treatment (including the need of that child for a father)’.

This section has to be read in conjunction with the rules governing the paternity of children born following assisted conception. Under section 28 of the 1990 Act, children born to single or lesbian women treated in licensed clinics with anonymously donated sperm will be legally father less, clinics’ duty to consider their child’s need for a father translates into a statutory obligation to take into account the undesirability of single or lesbian motherhood. But my concern here is not with section 13(5)’s uneven impact upon single or lesbian patients - rather it is with the appeal to children’s welfare itself.

When section 13(5) was debated in parliament, the only matter of contention was the question of single or lesbian women’s access to treatment. In contrast, the wisdom of including a welfare principle was never doubted. When he introduced the amendment which became section 13(5), Lord Mackay, the then Lord Chancellor, said: ‘A fundamental principle to our law about children…is that the welfare of children is of paramount consideration. I think that it is…entirely right that the Bill should be amended to add that concept.’ (6)

The incorporation of a welfare principle was ‘greatly welcomed’ (7) by every peer who expressed an opinion. Lord McGregor, for example, described it as ‘a happy extension of a principle which has now been part of English law for more than half a century’ (8). For Baroness Warnock, it was axiomatic that ‘the good of the child…must be considered and taken into account’.

When the relevant clause came before the House of Commons three months later, a similar cross-party consensus was evident. Tory MP Ann Winterton asserted that ‘the interests of the child in matters of artificial insemination should be paramount’ (9). Her colleague Virginia Bottomley said ‘it must be right and proper for consideration to be given to the welfare of [the] child’ (10). Even Labour MP Jo Richardson, who was concerned that the needs of the ‘client’ should also be relevant, agreed that the clinician ought to ‘tak[e] account of the welfare of the child’ (11).

Across the political spectrum, then, the assumption appeared to be that because ‘we are all concerned with the welfare of the child’ (12), we should include a statutory direction to that effect whenever possible. But just because the welfare principle has been judged an appropriate test for deciding, for example, where a child should live after her parents’ divorce, it does not follow that it should determine whether a child is conceived.

While the welfare principle has become increasingly prominent in family law over the past 100 years, it is by no means a monolithic injunction to always prioritise children’s welfare. In fact, the precise priority to be given to the child’s best interests varies between different statutes. The Children Act 1989 makes the child’s welfare the court’s paramount consideration (13), whereas the Adoption Act 1976 adopts a weaker version which stipulates that the child’s best interests must be the first, but by implication not the only consideration (14). Weaker still is the Child Support Act 1991’s rendition of the welfare principle, which enjoins Child Support Officers merely to ‘have regard to the welfare of any child likely to be affected by [their] decision’ (15).

What all of these various welfare principles have in common, however, is that they apply to decisions that affect children who already exist and who therefore already have interests that can be weighed in the balance. Where the Human Fertilisation and Embryology Act’s welfare principle differs is that it purports to make a child’s best interests relevant to a judgement made prior to that child’s conception.

But how could a clinician take into account the welfare of any child who might be born following the use of assisted conception and decide, as a result, not to offer treatment to a particular couple or individual? The direction to clinics contained in section 13(5) could be subject to either a ‘thick’ or a ‘thin’ interpretation.

The thin version of the welfare principle could be used to deny access to infertility treatment only if we can envisage circumstances in which non-existence would be preferable to the life that would be led by these would-be parents’ offspring. To decide that it would be better not to be born than to have these people as one’s parents is to find that a particular couple or individual present an immediate threat to their offspring so grave that not being conceived could plausibly be considered preferable. It is difficult to imagine circumstances that would lead to this conclusion.

Despite being the more literal interpretation of section 13(5), this ‘thin’ reading has not taken hold, and instead the ‘thick’ interpretation applies. This thick interpretation - as proposed in parliament (16) and set out in the Human Fertilisation and Embryology Authority’s guidance to clinics - enjoins clinicians to take into account factors such as the would-be parents’ commitment to having and bringing up a child; their ability to provide a stable and supportive environment; their future ability to look after or provide for a child’s needs and the possibility of any risk of harm to their child (17).

I will argue that there are three problems with this welfare principle. First, it is unjust to deprive some citizens of the zone of privacy that surrounds most people’s reproductive decision-making. Second, the incorporation of a welfare principle into the legislation controlling access to assisted conception services is disingenuous and essentially meaningless. Finally, I contrast the use of the welfare principle in pre-conception decision-making with the judgements in tort actions for what has become known as ‘wrongful birth’ and ‘wrongful life’. I argue that the application of a pre-conception welfare principle sits uneasily with the normal assumption that the benefits that accrue from bringing a child into the world outweigh any disadvantages.

  • The welfare principle is unjust

The pre-conception welfare principle represents an invidious and opportunistic invasion of infertile people’s privacy. Deciding to try to conceive a child through sexual intercourse is usually assumed to be a self-regarding decision that takes place within the privacy of a couple’s intimate relationship. Yet biological infertility somehow serves to convert this choice into an other-regarding decision that must be judged according to its likely impact upon this ‘other’, namely the child that might be born. Whether the decision to conceive is self-regarding or other-regarding is not a function of biological infertility. There is no necessary connection between biological infertility and children’s impaired life-chances (18).

Regardless of whether the treatment is sought within the private or public sector, the future welfare of would-be patients’ children should be irrelevant when deciding whether to help them to conceive. Decisions about access to fertility treatment within the National Health Service (NHS) are complicated by other competing claims upon public resources. Because the welfare principle applies even when the proper distribution of public resources is not an issue, it is within the context of privately funded treatment that I flesh out my claim that section 13(5) is unjust.

It is clearly possible to imagine circumstances when a doctor’s ethical responsibility might prompt him or her to refuse a request for privately funded infertility treatment. Obvious examples would be if the patient was herself a child, or was otherwise incapable of giving a valid consent to medical treatment (19). But what if the doctor does not want to treat someone because he or she thinks that they would be an inadequate parent?

Given that future children’s welfare must be taken into account when deciding whether to treat a particular patient, a doctor could lawfully refuse treatment on child welfare grounds. And the British Medical Association (BMA) agrees that when health professionals positively assist people to become parents, they have a special responsibility to protect the welfare of children born as a result.

The considerations that commonly inform the ‘welfare of the child’ assessments that clinics carry out before accepting anyone on to their treatment programme are, among other things, whether either prospective patient has ever had any mental health problems or received counselling or been prescribed anti-depressants; whether they have had a child taken into local authority care, and whether either of them has a criminal record, particularly relating to offences involving violence and/or children. Clinics may also ask couples about the length of their relationship; the nature of their accommodation; and what arrangements they intend to make for their child’s full-time care.

Practice varies, and not all clinics are this exacting in their assessments of parental suitability. It is, however, routine to ask for permission to contact each would-be patient’s GP to confirm that there are no reasons why a particular person should be denied assistance with conception (20). Inferences may be drawn from a failure to give permission (21).

Let us imagine two hypothetical couples, couple A and couple B, both of whom have decided to abandon contraception in order to start a family. The female partner in couple A conceives within a few months, whereas the female partner in couple B has still not conceived 18 months later, at which point medical advice is sought. Tests reveal that the female partner in couple B has blocked fallopian tubes, and in vitro fertilisation (IVF) is recommended. Let us assume that couple B will meet the full costs of any treatment themselves. Nevertheless, before their first IVF cycle can be started, they must have their parental adequacy judged by the clinic, and their GP will be consulted to ensure that they are not known to present any risks to their future offspring.

So our two couples have both made the life-changing decision to become parents. One of these couples can, as a result of their biological good luck, have a baby without anyone scrutinising their parental adequacy. But couple B’s biological misfortune means that they must be judged fit people to bring a child into the world prior to conception.

There is, of course, no reason to suppose that couple B are more likely to be inadequate parents than couple A. Couple A could be crack-addicts and known child abusers, who have had all of their previous six children taken into the care of the local authority, and yet their conception decision-making would still lie within the zone of privacy which is denied to couple B. Their child might be taken into care immediately after birth, but we cannot, and therefore do not prevent that child’s conception. Provided that a couple’s reproductive organs are functioning normally, they may have as many children as they like.

We exercise no control over the reproductive decision-making of fertile individuals who are likely to mistreat any child they might have because protecting their bodily integrity and sexual privacy trumps our concern about the risk of harm they present to future children. So in this hierarchy of protected interests, the welfare of future children occupies a curious middle ground, in which it is always less important than fertile couples’ bodily integrity and sexual privacy and more important than infertile couples’ decisional privacy. How could this be fair?

One obvious reason for drawing this distinction between fertile and infertile couples might be found in the difference between positive and negative liberty. If the freedom to have children is essentially a negative liberty, then the state’s obligation is simply to refrain from placing obstacles in the path of individuals who wish to conceive, rather than positively providing them with the services that might be necessary in order to overcome their biological incapacity. So couple A cannot be prevented from conceiving normally, but there is no obligation to positively assist couple B.

But couple B is not asking the state to provide them with assisted conception services. In these circumstances, I would argue that they too have a ‘right to be let alone’ (22), although admittedly its content is slightly different from that of couple A. Couple B’s privacy interest is in making the decision to start a family. All of the available treatments may turn out to be clinically inappropriate for them, but we invade their decisional privacy when judge the wisdom of couple B’s reproductive decision-making. Once we remove resource-based considerations from the equation, section 13(5) is revealed to be an obstacle placed by the state upon the decisional privacy of infertile couples.

So even if we accept that there can be no right to have a child, merely that there is a right to be free from external constraints upon one’s decision-making process, the pre-conception welfare principle could plausibly be described as an interference with infertile people’s negative liberty.

Two assumptions underlie my claim that section 13(5) is unjust. First, I take for granted that fertility is a natural asset that is unevenly and arbitrarily distributed, and that infertile couples have simply been biologically unlucky (23). Second, I assume that the desire to have children is not a trivial one. On the contrary, becoming a parent is one of the most momentous events in a person’s life, often assuming a central place in the trajectory of her life plan. If we adopt philosopher Charles Taylor’s definition of freedom as ‘the absence of external obstacle to significant action’ (24), section 13(5) clearly diminishes the scope of infertile couples’ liberty.

The decision to conceive a child should lie within a realm of decisional privacy. By this, I mean that there are some aspects of one’s life where the interest in making decisions for oneself, according to one’s own values and priorities, is of overwhelming importance. The decision to reproduce is precisely the sort of choice that we all need to be able to make free from public scrutiny or assessment. In the words of Justice Brennan in the American case Eisenstadt v Baird (25): ‘If the right to privacy means anything, it is the right…to be free from unwanted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’

Decisional privacy might alternatively be described as deliberative autonomy, the essence of which is that we should be free to make important decisions according to our own values. Of course the choices we make will be profoundly influenced by our cultural and affective context. But just as our lives and identities are shaped by social forces beyond our control, so they are also constituted by decisions that we take for ourselves.

Electing to abandon birth control measures in order to conceive is a particularly good example of a choice that is both socially embedded and collaborative, while simultaneously lying within the archetypal zone of privacy. In the ordinary course of events, people would be outraged and affronted if told that before this ‘private’ decision could be acted upon, their parental adequacy must be assessed by a healthcare professional. Yet should one member of this couple prove to be infertile, a choice that they had previously assumed to be private will be subject to precisely this scrutiny. If decisional privacy has value because we recognise that it is intrinsically demeaning to have our most personal deliberations opened up to public evaluation (26), this must be equally true for infertile people.

Some might argue that our inability to assess most people’s parental fitness prior to conception is a regrettable consequence of the priority accorded to bodily integrity. If we can ensure that individuals meet some minimum level of parental adequacy before they conceive, then our concern for children’s wellbeing should lead us to seize this opportunity. Yet this sort of justification for the welfare principle has much in common with the arguments popular among eugenicists in the first half of the twentieth century. Just as eugenicists argued that society would be improved if ‘defective’ individuals were discouraged from reproducing, so section 13(5) is intended to weed out ‘unfit’ parents from assisted conception services in order to enhance children’s welfare.

The pre-conception welfare principle may be directed towards improving the quality of individual children’s lives, rather than the health of society as a whole, but it nevertheless rests upon the assumption that it is the business of government to dissuade certain individuals from conceiving. In the House of Lords, Baroness Elles supported the amendment that became section 13(5) precisely: ‘in order to discourage people from having children if they do not at least have the family structure and financial support which they need in those circumstances.’ (27)

But we reject eugenic principles not only because strategies such as compulsory sterilisation of the ‘unfit’ violated those individuals’ bodily integrity. An equally important reason is the belief that it is simply illegitimate for the state to make judgements about who should and who should not be permitted to reproduce.

And why should we should tolerate mildly intrusive scrutiny of all infertile couples in order to exclude the tiny proportion of would-be parents who might represent a danger to their children? Invoking an extreme example, such as a couple who would be likely to have their child taken into care immediately after birth, in order to justify subjecting every infertile couple to the humiliating experience of having to justify their parental adequacy prior to conception disregards the intrinsic importance of the freedom to withdraw certain intimate decisions from public scrutiny. If the claim is that we should be prepared to put up with a degree of inconvenience and embarrassment in order to protect a small number of children from significant harm, then there is no reason why this should apply only to would-be parents who happen to be infertile.

  • The welfare principle is disingenuous

My second criticism of section 13(5) is that it is, in practice, incapable of distinguishing between adequate and inadequate parents. As a result, its retention might also be pointless.

Aside from a few exceptional treatments (such as artificial insemination using the husband’s own sperm) which can be carried out without a license, clinics can only provide the vast majority of assisted conception services if they have a license granted by the Human Fertilisation and Embryology Authority (HFEA). License renewal is contingent upon compliance with both the terms of the legislation and the HFEA’s Code of Practice (28). Clinics that were blatantly ignoring the injunction to consider the child’s welfare could therefore face withdrawal or non-renewal of their licenses.

Yet there is no direct prohibition upon the treatment of specific categories of would-be patient - so in practice, to satisfy the HFEA there must be simply be a procedure in place to demonstrate that the welfare of the child has been considered (29). In some clinics, prospective patients must see a counsellor prior to acceptance on to their treatment programme, whereas other clinics’ compliance with section 13(5) is limited to the requirement that patients sign a form consenting to their GP being contacted.

Processes for evaluating the welfare of the child, even if they are comparatively vigorous, are incapable of identifying inadequate parents. Infertility clinicians do not receive training in assessing future parenting ability, and nor will they have access to the sort of detailed information that ought to inform such a complicated assessment.

Research consistently demonstrates that better outcomes for children are associated with their parents’ warmth, sensitivity and responsiveness (30), so if we are really attempting to enhance the welfare of children through the application of section 13(5), prior to treatment clinicians should be attempting to anticipate the quality of the relationship that is likely to develop between this couple or individual and any child that they might conceive.

It is not easy to predict whether a childless couple is capable of offering a child unconditional love and a stimulating environment. Unlike adoption agencies, infertility clinics do not conduct rigorous investigations into the backgrounds and lifestyles of would-be parents. They do not make home visits over a sustained period of time, nor do they interview other family members. And if the couple seeking treatment already has children, clinicians will not interview the child, nor will they seek reports from teachers or other individuals who might be in a position to comment upon their parenting skills.

With no evidence upon which to base these welfare assessments, decisions taken under section 13(5), according to psychologist Susan Golombok ‘may frequently come down to the personal whim of the clinician in charge’ (31). The HFEA’s Code of Practice does offer clinics some guidance on the interpretation and implementation of section 13(5) (32), but given the inevitable superficiality of their investigations (33), their assessments of prospective patients’ aptitude for parenthood are likely to be perfunctory and at times perhaps ill-judged.

It therefore seems that section 13(5) cannot be motivated by profound concern for the welfare of children born following assisted conception, which would require a far more intensive scrutiny of would-be patients. Instead, I would suggest that section 13(5) is an essentially cosmetic provision. Its inclusion in the Human Fertilisation and Embryology Bill in 1990 was supposed to address the concerns of MPs who were alarmed by the possibility that infertility treatment might routinely be provided to single or lesbian women.

In the debates in both Houses of Parliament this was a recurring concern, and an amendment that would have prohibited the treatment of such women was narrowly defeated (34). Given the extent of this hostility to the creation of ‘fatherless’ children, some concession was needed in order to neutralise parliamentary opposition to the bill. Hence section 13(5)’s specific mention of the child’s ‘need for a father’. So while ostensibly directed towards protecting the welfare of the child, section 13(5)’s principal purpose was instead to obstruct the treatment of women without male partners (35).

Of course it could be argued that if the Human Fertilisation and Embryology Act’s pre-conception welfare principle is merely ‘window dressing’ with little practical impact upon people’s access to infertility treatment, why not simply ignore it? However, because I believe that it violates infertile couples’ decisional privacy, and, as I explain below, that it is also inconsistent with certain basic legal principles, its functional inadequacy means that there can be no justification for its retention.

  • The welfare principle is incoherent

There are inconsistencies between the pre-conception welfare principle and the dominant approach of the courts in the so-called ‘wrongful life’ and ‘wrongful birth’ actions. In England, the phrase ‘wrongful life’ is generally assumed to refer to a case brought by a child whose claim is that ‘but for’ the defendant’s negligence, they would not have been born and their injury - that is their painful life - would have been avoided. In the leading English case Mary McKay claimed that she had suffered damage by ‘entry into a life in which her injuries are highly debilitating’ after her mother’s doctor failed to diagnose and treat the rubella infection she had contracted during pregnancy) (36).

Because the doctor in this case had not caused Mary’s injuries, he had just failed to offer Mrs McKay the opportunity to terminate her pregnancy, the Court of Appeal found that the gist of Mary’s complaint was that she was allowed to be born at all. Thus to assess compensation, they would have to compare the value of non-existence (of which she had been deprived by the doctor) and existence in a disabled state.

Lord Justice Ackner was not prepared to countenance such a balancing exercise. He asked: ‘how can a court begin to evaluate non-existence the undiscovered country from whose bourn no traveller returns?’ And his conclusion was simple: ‘No comparison is possible.’ (37) Lord Justice Stephenson also rejected Mary McKay’s claim, but his reasoning was slightly different. He appeared to argue that if the choice is between entering into life with a disability and not entering it at all, then living should almost always be considered preferable. There is an obvious inconsistency between these two judgements. Ackner argues that it is simply impossible to evaluate non-existence whereas Stephenson contends that existence must almost always be judged preferable to non-existence.

Clearly we can only arrive at Stephenson LJ’s assessment of the relative merit of existence and non-existence if we have evaluated, albeit crudely, the value of non-existence. Stephenson LJ’s judgement should perhaps be preferred because it is also plainly not true that the courts are incapable of deciding that non-existence would be preferable to (or at least no worse than) existence, since this is precisely the assessment that has sometimes been made when authorising the non-treatment of very severely disabled neonates (38). If existence is always to be preferred, then it would be difficult to justify denying any premature baby, however terrible her injuries, life-prolonging treatment.

Despite the existence of these subtle differences, both of these judgements sit rather uneasily with the pre-conception welfare principle. When a clinician decides whether to offer treatment to would-be parents, he or she is charged with weighing up whether or not the welfare of any child that they might have would be best served by coming into being. So although Ackner LJ states that it is simply impossible to compare existence with non-existence, section 13(5) of the Human Fertilisation and Embryology Act demands that clinicians should engage in precisely this balancing exercise in order to work out whether existence or non-existence would be in a particular future child’s best interests.

Stephenson LJ’s acknowledgement that existence must almost always be preferred to non-existence does leave open the possibility that there could be some rare circumstances in which it would be possible to conclude that non-existence would be preferable. An example might be an exceptionally severely disabled neonate who would derive no benefit from her continued existence. If this reasoning were applied to section 13(5), it would constitute what I referred to previously as the ‘thin’ interpretation, that is that any child conceived by these parents would have a life so short, painful or insensate that it would probably be better for them never to exist. There are very few, if any, potential parents who could plausibly be refused treatment on these grounds.

Yet section 13(5) is not merely a filter to exclude individuals whose baby is inevitably going suffer from appalling pain and distress - rather, it is directed towards judging a couple or individual’s likely parenting ability before deciding whether to offer them treatment. This ‘thick’ version of the welfare principle is plainly inconsistent with the judgements of both Stephenson and Ackner LJJ. If it is accepted that it will invariably be in a child’s best interests to be conceived and born (39), applying the welfare principle prior to conception is essentially meaningless.

The judgement in McKay is usually assumed to have precluded the possibility of future claims for wrongful life. Wrongful birth cases have, however, had rather more success. These are lawsuits in which the parents claim that negligence, usually on the part of a health authority, has led to the birth of an unwanted child - such as where a sterilisation operation has failed to achieve sterility. In these circumstances it has proved relatively easy to recover damages for the pain and discomfort associated with pregnancy and for associated costs such as maternity clothes. But although the unplanned child’s maintenance is undoubtedly another foreseeable loss, in McFarlane v Tayside Health Board (40) the House of Lords decided that, provided the child is born healthy, recovery would not be fair, just or reasonable.

Parents have been barred from recovering the costs associated with their unplanned child’s maintenance because it is seen as unseemly and contrary to public morality to compensate parents for the birth of a healthy child. The ‘inarticulate premise’ underlying the House of Lords’ judgement in McFarlane was that the birth of a healthy baby should always be treated as a blessing and an occasion for joy (41). According to Lord Millett, because having a child is something that the law will treat as beneficial, claimants are not allowed, by a process of subjective devaluation, to make a detriment out of a benefit (42).

So in relation to ‘wrongful birth’ actions, the judiciary is also troubled by the idea that not being conceived could ever be judged preferable to conception. Yet the assumption underpinning section 13(5) is precisely that there might be circumstances in which it would not be in a potential child’s best interests to be conceived. Effectively, this must mean that there are circumstances in which, based upon an assessment of the child’s best interests, non-life is the preferred option.

But if the birth of a child should always be a cause of celebration, how could you appeal to a future child’s welfare in order to decide that his or her birth would not be something to be celebrated? If the law always treats conceiving a child as beneficial, how could it at the same time enjoin infertility clinics to weed out would-be parents on the grounds that their child’s conception would not be beneficial?

Of course, in the wrongful birth and the wrongful life cases, the child whose life is being judged a blessing already exists, whereas section 13(5) applies before a child is conceived. It could be argued that once a child has been born, the law will regard that child’s life as a blessing, but where there is no child yet in existence this ‘all children are a blessing’ principle cannot apply because otherwise we should all be continuously striving to bring as many children into the world as possible.

My point is not, however, that a child’s conception is always a ‘blessing’ - rather it is that it should be for the person who is contemplating conceiving a child to make this decision according to their own values and priorities. In practice, of course, many people do base their reproductive decisions upon an assessment of the welfare of any child that they might conceive. A complex web of considerations inform most people’s decisions about sex and contraception, one of which may be their capacity to offer a child a stable and supportive home. But these are reasons that properly lie within a protected zone of decisional privacy, and should therefore not be subject to qualitative evaluation by third parties.

  • Removing the child welfare filter

In my view, the decision to deny someone access to assisted conception services should not be based upon an assessment of their future child’s welfare.

If an individual doctor does not want to treat a particular couple, its important to remember that there is a conscientious objection clause in section 38(1) of the Human Fertilisation and Embryology Act, which offers some protection for health care professionals who are uncomfortable with the provision of assisted conception services. Forcing doctors who wish to make moral judgements about an individual’s fitness for parenthood to exercise their right to conscientious objection would lend the law greater transparency and coherence because any reluctance to offer treatment services would be admitted to lie within the doctors subjective moral sensibilities, rather than with section 13(5)’s profoundly dishonest claim that objective and non-discriminatory pre-conception assessment of parenting ability is either fair or possible.

Once the pre-conception welfare principle that is supposed to control access to infertility treatment is subjected to scrutiny, it is revealed to be hopelessly incoherent. Given that I have also shown that its practical impact upon children’s wellbeing is nugatory, there seems to be no satisfactory justification for its retention. In sum, I would argue that the welfare of children who do not yet exist is, in simple and crude terms, none of the law’s business.

Emily Jackson is a senior lecturer in law at the London School of Economics.

This is an edited version of a paper published in the Modern Law Review in March 2002. The arguments in this article were also presented at the Institute of Ideas’ Genes and Society Festival in London on 26/27 April 2003

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(1) A notable exception is Helen Reece, ‘The Paramountcy Principle: Consensus or Construct’, (1996) 49 Current Legal Problems 267

(2) The exception is Gillian Douglas, ‘Assisted Conception and the Welfare of the Child’ (1993) Current Legal Problems 53

(3) Evidence to support this claim can be found in the Human Fertilisation and Embryology Authority’s guidance to clinics setting out the factors to be taken into account when assessing the welfare of the child: Human Fertilisation and Embryology Authority Code of Practice 5th ed (London: HFEA, April 2001) paras. 3.11-3.18)

(4) AM Capron, ‘Tort Liability in Genetic Counseling’ (1997) 79 Columbia Law Review 618, at 665

(5) Law no. 94-654, discussed at length by Nan T. Ball, ‘The Reemergence of Enlightenment Ideas in the 1994 French Bioethics Debates’ (2000) 50 Duke Law Journal 545

(6) HL Deb vol 516 col 1097 6 March 1990

(7) Lord Ennals; Lord McGregor, HL Deb vol 516 col 1100 6 March 1990. See also Lord Robertson, HL Deb vol 516 col 1100 6 March 1990

(8) Lord McGregor, HL Deb vol 516 col 1100 6 March 1990

(9) HC Deb vol 174 col 1021 20 June 1990

(10) HC Deb vol 174 col. 1031 20 June 1990

(11) HC Deb vol 174 col. 1028 20 June 1990

(12) Lord Ennals, HL Deb vol 516 col 1100 6 March 1990

(13) s. 1(1)

(14) s. 6. This will soon be replaced by a new Adoption Act which is likely to make the child’s welfare the paramount consideration.

(15) s. 2

(16) In the House of Lords Lord MacKay fleshed out how section 13(5) should be applied in practice: ‘Among the factors which clinicians should take into account will be the material circumstances in which the child is likely to be brought up and also the stability and love which he or she is likely to enjoy. Such stability is clearly linked to the marital position of the woman and in particular whether a husband or longterm partner can play a full part in providing the child with a permanent family setting in the fullest sense of that term, including financial provision’. HL Deb vol 516 col 1098 6 March 1990

(17) Human Fertilisation and Embryology Authority, Code of Practice 5th ed (London: HFEA, April 2001), para. 3.13

(18) Susan Golombok, Parenting: What Really Counts?, (London: Routledge, 2000)

(19) If someone is suffering from mental incapacity, medical treatment will be lawful only if it satisfies a ‘best interests’ test. Given the physical discomfort and health risks associated with infertility treatment, it certainly might not be in the best interests of a mentally incapacitated adult

(20) Human Fertilisation and Embryology Authority, Code of Practice 5th ed (London: HFEA, April 2001), para. 3.20

(21) Human Fertilisation and Embryology Authority, Code of Practice 5th ed (London: HFEA, April 2001), para. 3.21

(22) Samuel Warren and Louis D. Brandeis, ‘The Right to Privacy’ (1890) 3 Harvard Law Review 289

(23) There is no evidence to support the common misperception that infertility is a modern problem caused by (and perhaps, punishment for) women’s promiscuity and/or deferral of childbearing. In fact, female fertility may actually be increasing because despite some evidence of declining sperm counts a recent study has concluded that there has been ‘a clear rise in couple fertility in recent decades’. (Michael Joffe ‘Time trends in biological fertility in Britain’ (2000) 355 Lancet 1961, 1963)

(24) Charles Taylor, ‘What’s Wrong with Negative Liberty?’, Philosophy and Human Sciences: Philosophical Papers, vol. 2 (Cambridge: Cambridge University Press, 1985) 218

(25) (1972) 405 U.S. 438, at 453

(26) Robert Post, ‘The Social Foundations of Privacy: Community and Self in the Common Law Tort’ (1989) 77 California Law Review 957, 967

(27) HL Deb vol 515 col 798-9 6 February 1990

(28) Human Fertilisation and Embryology Authority, Code of Practice 5th ed (London: HFEA, April 2001)

(29) Human Fertilisation and Embryology Authority, para. 3.10

(30) Susan Golombok, Parenting: What Really Counts?, (London, Routledge, 2000)

(31) Susan Golombok, Parenting: What Really Counts?, (London, Routledge, 2000)

(32) Human Fertilisation and Embryology Authority, Code of Practice 5th ed (London: HFEA, April 2001), paras. 3-11-3.18

(33) Gillian Douglas, ‘Assisted Conception and the Welfare of the Child’ (1993) Current Legal Problems 53

(34) HL Debs Vol 515 6th February 1990 col 787

(35) Gillian Douglas, ‘Assisted Conception and the Welfare of the Child’ (1993) Current Legal Problems 53, 58

(36) McKay v Essex Area Health Authority [1982] QB 1166

(37) At 1189

(38) see, for example, Re B (a minor) [1981] 1 WLR 1421; Re J (A Minor)(Wardship: Medical Treatment) [1990] 3 All ER 930; National Health Service Trust v D [2000] 2 FLR 677. Although in Re A (Children) (Conjoined Twins: Surgical Separation [2001] 2 WLR 480, the Court of Appeal suggested that existence must be assumed to be preferable to non-existence for “Mary” (the weaker twin whose quality of life was undoubtedly pitifully low).

It has been suggested that section 1(1)(d) of the Abortion Act 1967 (which allows abortion if there is a substantial risk that the child would be born seriously handicapped) is another example of the law recognizing that non-existence will sometimes be preferable to existence (see, for example, JK Mason and A McCall Smith, Law and Medical Ethics 5th edition (London: Butterworths, 2000) at 165).  Sally Sheldon and Stephen Wilkinson have, however, effectively demolished this “fetal interests” explanation for s. 1(1)(d). See Sally Sheldon and Stephen Wilkinson, ‘Termination of Pregnancy for Reason of Foetal Disability: Are there Grounds for a Special Exception in Law?’ (2001) 9(2) Medical Law Review 85.

(39) See further Jeff McMahan, ‘Wrongful Life: Paradoxes in the Morality of Causing People to Exist’ in John Harris (ed) Bioethics (Oxford: Oxford University Press, 2001) 445

(40) [1999] 3 WLR 1301

(41) See, for example, the comments of Lord Steyn at 1318

(42) At 1346

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